My dissertation provided a holistic investigation into whether a connection exists between the fundamental principles of English land law and the English cultural concept of land. I argued that the primary cultural vehicle for representing land - pastoral literature - depicts common land themes such as ownership in a manner that is not only anthropocentric, but prioritises the interests of elite landowners over agricultural workers. I posited that this depiction is mirrored across land law, from landmark Denning cases on ownership and development, to conservation and planning legislation from the 18th century to present. My research aimed to argue that attempts at environmental law reform have been piecemeal to date and will continue to be so unless the underlying cultural concept of land, it’s purpose, and it’s place in relation to people, is shifted away from it’s pastoral foundations to become more ecocentric.
From a cross legal and literature analysis, I extracted three key themes in relation to English land – 1. Ownership, because of the keystone of absolute ownership in our legal system and obsession with home ownership in our culture, 2. Land’s Purpose, since legislative rationale for law often betrays more than its effect (even laws protecting land such as the National Trust Acts being rooted in a perspective of land as an aesthetic pleasure ground for the middle classes) and 3. the Wellbeing of Land and its People, taken to mean the environmental health and welfare of the land itself and those who rely on it for their livelihoods.
I seized the opportunity that studying Law at Lancaster offers to avoid a strict black letter approach and study law from a historical and sociological perspective. I explored the pastoral genre, from the religious pastoral, through the Bible and hymns, the critical pastoral work of Blake, Wordsworth, Shakespeare and Hardy, the artistic pastoral work of Hogarth and Constable, and the pastoral in children’s literature to the pastoral of contemporary poets including Larkin. It portrayed land as the rightful possession of elite landowners, to use for their leisure and to the detriment of the rural poor. It demonstrated a respect for the beauty of land, but not for the conservation so necessary to preserving this. These themes were echoed in legislation and case law.
Lord Denning, always a good conversation starter, paid homage to the pastoral in the lyricism of Re Weston’s Settlement ([1969] 1 CH 223 (C.A.)) and Burton v Claude Cousins & Co. Traditional elite interests and imbalances of class power are preserved by The Inheritance Act, The Landlord and Tenant Act, and the Copyhold Act, while the common law relegates the possession rights of non-traditional landowners, such as travellers and those with non-pastoral abodes (Elitestone v Morris [1997] 1 WLR 687, Leeds CC v Price [2006] UKHL 10). Land itself is a silent, unrepresented party, the ownership of it protected but its wellbeing flouted for the exploitation of fossil fuels by legislation such as the Land Powers (Defence) Act. Genuine repairs and upkeep of land to benefit those who rely on it are legally denied if not fitting a pastoral vision, as in Haydon v Kent County Council ([1978] QB 343). Historically the Poor Law Amendment Act and Inclosure Acts isolated the working classes from their land, and more recent case law, such as R v London Borough of Greenwich, declines to decry environmental atrocities which affect the working classes and damage land’s wellbeing.
My dissertation concluded that English land law mirrors the inequality in pastoral literature and is thus unsustainable. Though the pastoral myth pervades to present a homely image in food marketing, this only papers over the cracks of increasing Brexit-induced agricultural unpredictability and the uncertain future of the CAP. Defra’s competency to produce sound, sustainably policy for both farmers and environmental health is dubious. I compared paltry English attempts at environmental protection, prioritising commercial interests in the London Borough of Southwark v Information Commissioner (EA/2013/0163) decision, with the recent awarding of legal personality to land in New Zealand in the Te Awa Tupua Act, and assessed the cultural foundations of this, making connections to the Gaia theory. I suggested interdisciplinary cooperation between land law and ecology as a foundation for legislative reform. In addition, I considered memoirs authored by farmhands and shepherds as alternative pastoral literature to provide the cultural basis for such reform.
There appears a disconnect between the widespread recognition that land is fundamental to our society, and the sparse respect for its health and that of those who rely on it for their livelihoods. This is derived from pastoral literature and is perpetuated in land laws geared towards fast profits for this century’s ‘elite landowners’; big businesses. The urgency of the environmental crisis demands a departure from Lord Denning’s whimsy, to a practical, sustainable land law that has the wellbeing of land and it’s people as it’s central focus.